Respondents Brief — Billy Leon Kearse, Petitioner v. Ricky D. Dixon, Secretary, Florida Department of Corrections, et al.

CASE NO. 22-6868

IN THE UNITED STATES SUPREME COURT

October 2022, Term

BILLY LEON KEARSE,

Petitioner,

vs.

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

RESPONDENT'S BRIEF IN OPPOSITION

CAPITAL CASE

ASHLEY MOODY

ATTORNEY GENERAL OF FLORIDA

CAROLYN M. SNURKOWSKI*

Associate Deputy Attorney General

*Counsel of Record

LESLIE T. CAMPBELL

Senior Assistant Attorney General

Office of the Attorney General

PL-01, The Capitol

Tallahassee, FL 32399

Telephone (850) 414-3300

carolyn.snurkowski@myfloridalegal.com

capapp@myfloridalegal.com

QUESTION PRESENTED FOR REVIEW

[Capital Case]

Whether certiorari review of the habeas corpus claim of

ineffective assistance of penalty phase counsel

challenging counsel’s investigation, preparation, and

presentation of a mitigation case should be denied where

the circuit court determined that the state court’s

resolution of postconviction relief was not contrary to or

an unreasonable application of Strickland as counsel's

decision was not unreasonable under the circumstances?

(restated)

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ..000oo..oi eee ee eeeeceeeceesseceeetoneceneeesneees 1

TABLE OF CONTENTS ..0w.oo ooo ceecceseeeeeseeeeceesceeesceesesaneressseeeessneeesaesnaeseneeaes il

TABLE OF CITATIONS. 0000... eee eceeeneeeeeeeenereeeeeeseessececeeeesesseaaeeeeasesseseneeteeees rt

CITATION TO OPINION BELOW ....... ic eccescccsseesseeesseeseseeeeeesseeeseseeeeeeseeseeaees 1

JURISDICTION oo. cceeccesccssseeesesseeeeeseeeeessaeeveseesensesccesseaseessesuceesaceseeeeseeseestess 1

CONSTITUTIONAL PROVISIONS INVOLVED ....0.....ec ec eeeeseneeneeteceteeteneeees 1

STATEMENT OF THE CASE AND FACTS 20... cececcseeeesesseeeeteneneeeneenenees 2

REASONS FOR DENYING THE WRIT... cee cccsceseceeeessscsseeeeeesseeeeseseneeenes 13

TISSUE Toone cece cceneeeeeennecnsecneeneesecaaaneeeessaaeeseenaaeeesecesscnaaeaneseaeeasessseaeenseneens 13

CERTIORARI REVIEW OF THE DENIAL OF HABEAS CORPUS RELIEF

ON A CLAIM OF INEFFECTIVE ASSISTANCE OF PENALTY COUNSEL

SHOULD BE DENIED AS THE ANALYSIS CONDUCTED BY THE

CIRCUIT COURT UNDER THE DOUBLY DEFFERENTIAL STANDARD

OF STRICKLAND AND THE AEDPA IS NOT CONTRARY TO OR AN

UNREASONABLE APPLICATION OF THIS COURTS PRECEDENT AND

DOES NOT PRESENT AN IMPORTANT OR UNSETTLED MATTER OF

CONSTITUTIONAL LAW ounce icc ccccceccseecsseesesseaesnsssacseeeseessneeseseseneetenaes 13

The Circuit Court Conducted a Full and Proper AEDPA Analysis of Counsel's

Performance Based on Testimony Regarding Strategy and Supporting Record

Evidence to Find that the Florida Supreme Court's Opinion Was Not

Contrary to or an Unreasonable Application of Federal Law......................... 16

Trial Counsel's Reliance on Dr. Lipman to Challenge the State's Expert Was

Reasonable Under Strick ann ...00........cccccccccesecceeeenseeeeteeeeeceeceneeeeseseeeseeersnseeeses 21

The Florida Supreme Court's Strickland Prejudice Prong Analysis Does Not

Conflict with a Case from This Court ........ cc. csccecessseceeesseseeeesecneeseseeesteeeeens 23

CONCLUSION .00...ceeeccceeccsseceeeesseeeessneeesecaeesssesesseesecaeeseessaeseeeseecaeeeeeseeeaeseaaes 26

CERTIFICATE OF SERVICE oo. eccsssceesessscceeeeessesessccneeseseessoesessacees 27

INDEX TO APPENDIX |... ceeeeeessesceceeceerrecsnconeeesesceeeceesesseceeetsesnoeeteees 28

ri

TABLE OF CITATIONS

Page(s)

Cases

Battentield v. Gibson,

236 F.8d 1215 (LOth Cir. 2001) o.....c.cccceccccccscecssesessessssesessesseeecsecseesssseseecasenecceseseees 20

Brown v. Payton,

BAA U.S. 133 (2005) oc. eeecccccccssescescscescesescescsscsescsccsssesscsesessssesessesseasesessesseaecseseeeeesees 14

Buchanan v. Kentucky,

ABS U.S. 402 (1987) .....cccccsscccsccsesseseesessesscsessesssecsesscsesesssesscsesacsesscsecsesseaecaesseeecseseaeses 19

Davis v. State,

698 So. 2d 1182 (Fla. 1997) .......ccccssecsscssssesscscsssssscssescsesesesecssscsecsesseteseesesseesseesenees 19

Early v. Packer,

537 U.S. 3, 123 S. Ct. 362, 154 L.Ed.2d 263 (2002) ooo... eee ccececeeeeeccceeseeceeseeecees 15

Eggleston v. United States,

798 F.2d 374 (Oth Cir. 1986) ooo... cece ceccecesecesscseecescessecescssccssesesseseauecescecuceeseseaeeaee 17

Felkner v. Jackson,

131 S. Ct. 1805 (2011) (per curiam 2. eccccessceseeseesssescssesecsscesceecsescesseeseveceseceeace 15

Harrington v. Richter,

BOQ U.S. 86 (QOL) oo. ceccescscssssessssessesssssssescsesssceecsesessseseseseseeaesesecsssacsesaesasacseasesess 14

Hooper v. Mullin,

314 F.3d 1162 (10th Cir. 2002) ooo... cceeceeccccccsesseesecsececsecssecesccessseecsnesesesenereees 20

Hurst v. Flonda,

B77 U.S. 92 (2016) oo. ceeccccccccccssccsecccesevecssscscsnccssecsserecsesecsecusneescesesceessecevssaeacsneesssenss 4

Kearse v. Florida,

121 S. Ct. 1411 (Mar. 26, 2000) 0... ceccesssescsesssesesesecssessesesesecsessenesssecasseesesesuscaceess 3

Kearse v. Secretary, Florida Department of Corrections,

2022 WL 3661526 (11th Cir. Aug. 25, 2022) 0... ccc: “eececuceeuceeccessesceseures Passim

Kearse v. Sec'y, Fla. Dept. of Corr.,

669 F.3d 1197 (11th Cir. 2011) oo... cee cccsescsescsesesssesseececeesceesesecaesecsesecseseeeessseseseaeens 4

Kearse v. Sec'y, Fla. Dept. of Corr.,

736 F.3d 1359 (11th Cir, 2018) oo... cece ccccsesccsessescccessecssesscessocsseesesecesesseeseseecaeeeues 4

Kearse v. Sec'y, Fla. Dept. of Corr.,

100 So. 3d 1148 (Fla. 2012) 0... ccccccececcssssesssssseseseesesesssssaesesecsesacseesessessensensstseeseasees 4

Kearse v. State,

11 So. 3d 355 (Pla. 2009) oo... ceeecccccccccessscccesssessescssesseeessescssesessescesseesecsseceseeseseseese 3

Kearse v. State,

75 So. 3d 1244 (Fla. 2011) ooo... ceeecccccccccccssscesseecscecececscssccecessceessssececsuacecosseessnsesesenss 3

Kearse v. State,

252 So. 3d 693 (Fla. 2018) ........cccccecsscsscccesccsscsssossecssecsecsscccscessceseceeseesuaueesnsesaseneeuee 4

Kearse v. State,

662 So. 2d 677 (Fla. 1995) .......ccceccscesescesscsesseseseescsessssescsesesscsesesaeseesesseseessenesavseeeess 2,5

ill

Kearse v. State,

770 So. 2d 1119 (Fla. 2000) ..........eecccecceeccsecececccecccsesecceccecceecssseececareeceveueeeseseees Passim

Kearse v. State,

969 So. 2d 976 (Fla. 2007) ......ccecceeccesecesscesececeeseccncesssescseccscvserscseaeeeceesacessessecseeesaeeaase 3

Kearse v. State,

7170 So. 2d at 986 oo. ececccceccescesceccesceseceecesacedevscesevscsecesceeceaseasaensvsnseaseseeecseaeeaeenaees 23

Lawrence v. State,

308 So. 3d 544 (Fla. 2020) .....cccccecsccsscssscsssvessvseevssccesssscscsecsesesessusesesseeesssceeesaseesesase 24

McClesky v. Kemp,

753 F.2d 877 (L1th Cir. 1985) ....cccccccccscsscssssssccsscessssscsessessecsssceccsscessseseesaeseerecenease 18

Messer v. Florida,

834 F.2d 890 (11th Cir. 1987) ...c..cccccccescccsscssscessesscssscssceessssssessessaseseseasecaneeeceseseacens 17

O'Dell v. Netherland,

95 F.3d 1214 (4th Cir. 1996) oo. cecccccsccceccccsccccecesecseeceecceeeceacecaeseececsancesacesaceseneeess 17

Pulley v. Harris,

AGB U.S. 37 (1984) oo. ceececccscececccecceccecsececeeccesacecssesececacecaeseacesseseeeseacesuaceseccensessaceees 24

Rice v. Collins,

BAG U.S. 333 (2006) ........cccceccseccsecccsecceesscecececeecccseccseccesccesccesesaceatecsaseeesseesseesacesaueeeee 16

Robinson v. Maschner,

2 Fed. Appx. 683 (8th Cir. 2001) .......cccccccccccscccsssesesesssssessscsscsesssesceesseessecseesanseaeeaee 18

Rocktord Lite Ins. Co. v. Hlinois Dep’t of Revenue,

ABZ U.S. 182 (1987) ...ceececccccseccecccecccecccesccesccessecsccscesseceececcesesecssseaseseeeacecseceueracenseess 14

Rogers v. Zant,

13 F.3d 384 (11th Cir. 1994) ooo cececeececencceseccecceccesscceccescesseseseeseaceeseeesncenseeses 18

Strickland v. Washington,

ABE U.S. 668 (1984) oo. eecescssscscesecesssesseccsccecenscsuscncesscececseseesesecsceececesseesaceesecessess 4

Turner v. Willams,

35 F.3d 872 (4th Cir. 1994) oo. eeeeeecccesncceseseceecceccessesececeseesevececeneestererseesececseeeeners 17

United States v. Decoster,

624 F.2d 196 (D.C. Cir. 1976) woo. ccccecccccsscccscecsccscecsccescevsesenceesecsececaueeceseceecenseesees 17

Wilhams v. Taylor,

529 U.S. 362 (2O0O) .....ececcececcsecceccceecceecceesceeseeseeceseeccsaceacecseesecacensceceveueesuesseetene 13, 15

Woodford v. Visctotti,

537 U.S. 19, 123 S. Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam .............ccccceecee- 15

Yarborough v. Gentry,

124 S. Ct. 1 (2008) oo eeeeeececceccescceccceecceecececceccccccsccsseceeeaceaceseseceuceessacesseesuesausesessuens 15

Statutes

28 U.S.C. Section 2254(A)(1) .....ccecceecccecccecccsscccescsescesceaceseesccesccscesecseceuecseeesesseenees 14, 15

Xe OM ORE TS O15, | ( ) 1

28 U.S.C. § 2254 oo ccccccccceccscsscesscssssesssssssscscessscssscesseasescesssassasescsaenessseeasecsersareaes 1,4

lv

Rules

Rule 3.202, Fla. R. Crim. P ooo... cccccecccccesseceesenececeeeecececceneseeeeecsecceeeenseseeseseseeneneeee

Supreme Court Rule 10

CITATION TO OPINIONS BELOW

The decision of which Petitioner seeks discretionary review is unreported,

however may be found at Kearse v. Secretary, Florida Department of Corrections,

case no. 15-15228, 2022 WL 3661526 (11th Cir. Aug. 25, 2022). This capital case is

before this Court upon the decision of the United States Circuit Court of Appeals for

the Eleventh Circuit wherein it denied Kearse relief under the AEDPA standard

contained in 28 U.S.C. § 2254 Kearse v. Secretary, Florida Department of

Corrections, case no. 15-15228, 2022 WL 3661526 (11th Cir. Aug. 25, 2022).

JURISDICTION

Petitioner, Billy Leon Kearse (“Kearse”), is seeking jurisdiction pursuant to

28 U.S.C. § 1254(1). This is the appropriate provision.

CONSTITUTIONAL PROVISIONS INVOLVED

Respondent, State of Florida (hereinafter “State”), accepts as accurate

Petitioner’s recitation of the applicable constitutional provisions involved.

STATEMENT OF THE CASE!

Kearse is in custody under a sentence of death. He is subject to the lawful

custody of the State of Florida pursuant to a November 8, 1991, judgment of guilt

Kearse v. State, 662 So. 2d 677, 680 (Fla. 1995), and March 24, 1997 death sentence

entered by the Circuit Court of the Nineteenth Judicial Circuit, Florida. Kearse v.

State, 770 So. 2d 1119 (Fla. 2000), cert. denied, Kearse v. Florida, 532 U.S. 945

(2001). On February 5, 1991, Kearse was indicted for the January 18, 1991, firstdegree murder of police officer Danny Parrish (“Parrish”) and possession of a

firearm by a convicted felon. The indictment was amended on May 8, 1991, to

include a robbery with a firearm count. Trial commenced October 14, 1991, and a

week later the jury convicted him of armed robbery and first-degree murder. Kearse

v. State, 662 So. 2d 677, 680 (Fla. 1995). Upon the jury’s recommendation, the trial

court imposed a death sentence. While affirming the conviction, the Florida

Supreme Court remanded for resentencing. Kearse v. State, 662 So. 2d 677 (Fla.

1995). Following the new penalty phase and the jury’s unanimous death

recommendation, on March 25, 1997, Kearse was re-sentenced to death. The Florida

1 References to the records will be: “1ROA” for the 1991 Direct Appeal; “2ROA-R”

and “2ROA-T for the 1996 Resentencing Record and Transcript: “1PCR” for the

Initial Postconviction record; “2PCR” for the Successive Postconviction Record;

“3PCR” for the Second Successive Postconviction Record; “4PCR” for the 2017

(SC17-346) Hurst postconviction appeal; and “5PCR” for the second Hurst

postconviction record (SC18-458) at issue here. Supplemental materials will be

designated by the symbol “S” and where appropriate, the volume and page

number(s) will be included.

Supreme Court affirmed.? This Court denied certiorari and on March 26, 2000, the

case became final. Kearse v. Florida, 121 S. Ct. 1411 (Mar. 26, 2000).

On October 3, 2001, Kearse initiated his collateral challenge to his conviction

and sentence. Following an evidentiary hearing, relief was denied, and that denial

was affirmed. Kearse v. State, 969 So. 2d 976 (Fla. 2007). On December 26, 2007,

Kearse filed a successive postconviction motion challenging Florida’s lethal injection

protocols, and the summary denial was affirmed. Kearse v. State, 11 So. 3d 355

(Fla. 2009). A second successive postconviction motion was filed claiming newly

discovered evidence about trial counsel and seeking reconsideration of the

ineffectiveness claims. The Florida Supreme Court affirmed that summary denial

of relief of that motion. Kearse v. State, 75 So. 3d 1244 (Fla. 2011). Kearse also filed

a successive habeas petition challenging Dr. Martell, the State's mental health

2 The Florida Supreme Court stated:

The trial court found two aggravating circumstances: the

murder was committed during a robbery; and the murder

was committed to avoid arrest and hinder law

enforcement and the victim was law enforcement officer

engaged in performance of his official duties (merged into

one factor). The court found age to be a statutory

mitigating circumstance and gave it "some but not much

weight." Of the forty possible nonstatutory mitigating

factors urged by defense counsel, the court found the

following to be established: Kearse exhibited acceptable

behavior at trial; he had a difficult childhood and this

resulted in psychological and emotional problems. The

court determined that the mitigating circumstances,

neither individually nor collectively, were "substantial or

sufficient to outweigh the aggravating circumstances."

Kearse v. State, 770 So. 2d 1119, 1122-23 (Fla. 2000).

expert, based on events that took place after Kearse's re-sentencing in a separated

federal prosecution. The petition was denied. Kearse v. Sec'y, Fla. Dept. of Corr.,

100 So. 3d 1148 (Fla. 2012). The final state postconviction challenge raised a claim

under Hurst v. Florida, 577 U.S. 92 (2016). The summary denial was affirmed.

Kearse v. State, 252 So. 3d 693 (Fla. 2018).

Kearse also challenged his capital case in federal court by filing a petition for

writ of habeas corpus under 28 U.S.C. §2254 and reviewed under Anti-terrorism

and Effective Death Penalty Act of 1996 ““AEDPA”) standard. The petition was

reviewed by the circuit court twice before the district court reached the merits of the

petition. See, Kearse v. Sec'y, Fla. Dept. of Corr., 669 F.3d 1197 (11th Cir. 201);

Kearse v. Sec'y, Fla. Dept. of Corr., 736 F.3d 1359 (11th Cir. 2013) and denied relief.

The circuit court determined that Kearse was not entitled to federal habeas relief

Kearse v. Secretary, Florida Department of Corrections, case no. 15-15228, 2022

WL 3661526 (11th Cir. Aug. 25, 2022) based on the determination that under the

"doubly" deferential standard of review of a Strickland v. Washington, 466 U.S. 668

(1984) claim, the Florida Supreme Court did not unreasonably conclude that

defense counsel's performance was reasonable under the circumstances. Kearse,

WL 3661526 *23. It is this decision under review.

STATEMENT OF THE FACTS

On direct appeal from the conviction, the Florida Supreme Court found:

Kearse was charged with robbery with a firearm and firstdegree murder in the death of Fort Pierce police officer

Danny Parrish on January 18, 1991. After Parrish

observed Kearse driving in the wrong direction on a one-

way street, he called in the vehicle license number and

stopped the vehicle. Kearse was unable to produce a

driver's license, and instead gave Parrish several alias

names that did not match any driver's license history.

Parrish then ordered Kearse to exit the car and put his

hands on top of the car. While Parrish was attempting to

handcuff Kearse, a scuffle ensued, Kearse grabbed

Parrish's weapon and fired fourteen shots. Thirteen of the

shots struck Parrish, nine in his body and four in his

bullet-proof vest. A taxi driver in the vicinity heard the

shots, saw a dark blue vehicle occupied by a black male

and female drive away from the scene, and called for

assistance on the police officer's radio. Emergency

personnel transported Parrish to the hospital where he

died from the gunshot injuries.

. . . Kearse was arrested at that address. After being

informed of his rights and waiving them, Kearse

confessed that he shot Parrish during a struggle that

ensued after the traffic stop.

Kearse, 662 So. 2d at 680-81. 3

During the original trial, Kearse's passenger, Rhonda Pendleton‘

("Pendleton"), testified that when she first saw Kearse at her brother's house before

going for pizza, he had scratches on his neck and arms from a fight with his

8 In his Introduction (P. at 4), Kearse leaves the impression that he gave Officer

Parrish his real name and then Officer Parrish attempted to effectuate an arrest.

While that was Kearse's testimony offered at the resentencing, that is not what the

Florida Supreme Court found and it is in conflict with what his passenger, Rhonda

Pendleton, testified to in the original trial and acknowledged in the re-sentencing.

During the re-sentencing, Pendleton was located by the defense and testified that

on the third request, Kearse gave Parrish his true name before an arrest was

attempted. However, such testimony was given after she witnessed Kearse's resentencing testimony. Further, on cross-examination, she admitted her recollection

was better during her 1990 deposition and 1991 trial testimony. (2ROA-T 1943,

1957-63) which did not contain reference to Kearse giving his true name to the

officer.

4 In the re-sentencing, Pendleton's prior testimony was read. Later, the defense

was able to locate her, and she testified before the re-sentencing jury as well.

stepfather. (LROA.7 1457-58; 2ROA-T 1633-35). Upon their return from picking up

pizza, the car Kearse was driving started to smoke and Kearse turned the wrong

way down a one-way street and soon realized a police officer with blue lights

flashing was behind them and they stopped. (1ROA.7 1461-62; 2ROA-T 1638-39,

1654). Upon approaching the car, Officer Parrish ("Parrish") asked for Kearse's

license and registration, and Kearse advised that his license was at home and that

his name was "Dwayne D. Fuller." (2ROA-T 1639-40). After returning from his

cruiser, Parrish again asked Kearse for his name noting there was nothing under

the first name offered and Kearse gave "Dwayne Dixon Fuller" (1ROA.7 1463;

2ROA-T 1642-44) Upon returning to the car for a third time having found no match

to a record on "Fuller," Parrish asked Kearse to step out of the vehicle and put his

hands on the car. Kearse complied, but once Parrish touched him, a fight ensued

and Kearse took Parrish's gun, shooting him multiple times. (1ROA.7 1465-66;

2ROA-T 1644-47). On the way back to Pendleton's house and in response to her

inquiry, Kearse admitted to shooting the officer because his probation was

"suspended" and the police were looking for him. (IROA.7 1470; 2ROA-T 1649-51).

The ordered re-sentencing commenced on December 9, 1996, and the State

again offered testimony to support the first-degree murder and robbery of Parrish

for which Kearse was convicted which established four aggravating factors merged

into two: "felony murder" (robbery); "avoid arrest;" "hindering law enforcement;"

and "victim was law enforcement officer engaged in his official duties." These were

based upon evidence that Kearse wanted to avoid returning to prison and killed

Parrish while being detained following a traffic infraction.®

The defense mitigation case consisted of Kearse testifying along with school

officials, family members, a friend, and mental health professionals.6 These

witnesses discussed Bertha Kearse's drinking while pregnant with Kearse, Kearse's

difficult family life, the school designation that Kearse was learning disabled and

emotionally dysfunctional. The jury heard that Kearse confabulated when

discussing the crime, suffered from Fetal Alcohol Effect, had brain dysfunction,

concentration, and behavioral problems, and was indecisive, insecure, and

defensive, with a tendency to be hyperactive and react without thinking. Dr.

Petrilla offered two statutory mental mitigators applied: (1) extreme emotional

disturbance at the time of the crime and (2) substantially incapable of conforming

his conduct to the requirements of the law. Pendleton, whom the defense was able

to locate even though the State had failed, testified Kearse did not kill Parrish to

5 See 2ROA-T 1156-57, 1167, 1337-42, 1421-22, 1436, 1489, 1467-93, 1521-22, 1524-

26, 1529-30, 1532-36, 1558-65, 1669-73, 1638-41, 1644-45, 1650, 1677, 1682-90,

1708, 1711-12.

6 Kearse points to Dr. Lipman and the State's objection to his testimony regarding

psychological testing and how that exceeded his licensing. (P. at 8). The record

shows that Dr. Lipman was not privy to any discussion of his licensing restrictions

as he does not appear to have entered the courtroom at the time the objection was

raised (2ROA 2277). Further, the trial court characterized the State's objection to

Dr. Lipman as a bench objection, where presumably Dr. Lipman, even if he were in

court, should not have been able to hear the conversation at the bench. (1PCR

5734). What is clear is the jury was not in the courtroom when the trial court made

its ruling and verbally mused about possible charges. (2ROA 2286-87).

avoid arrest.7? The jury rendered a unanimous death recommendation (2ROA-R

575), and the death penalty imposed was affirmed. Kearse, 770 So. 2d at 1123.8

At the original trial and in the re-sentencing, Kearse was represented by

Robert Udell ("Udell").2 In his state postconviction litigation, Kearse raised

multiple challenges to Udell's representation. Of import in this petition is the claim

of ineffective assistance of counsel during the re-sentencing for failure to investigate

7 See ZROA-T 1757-72, 1777-78, 1782-83, 1793, 1797, 1811-12, 1816-28, 1833, 1851-

55, 1859-71, 1933-34, 1939, 1942-45, 1948-49, 1951-59, 1968-69, 1971-74, 1979-85,

1990, 1997-20038, 2014-20, 2023-28, 2031-33, 2037-40, 2047, 2052-56, 2061-63, 2075-

79, 2086-87, 2095, 2113-14, 2121-24, 2134-38, 2144-51, 2153-59, 2170-99, 2200-03,

2227-33, 2239, 2247-51, 2254-71, 2287-95.

8 The Florida Supreme Court stated:

The trial court found two aggravating circumstances: the

murder was committed during a robbery; and the murder

was committed to avoid arrest and hinder law

enforcement and the victim was law enforcement officer

engaged in performance of his official duties (merged into

one factor). The court found age to be a statutory

mitigating circumstance and gave it “some but not much

weight.” Of the forty possible nonstatutory mitigating

factors urged by defense counsel, the court found the

following to be established: Kearse exhibited acceptable

behavior at trial; he had a difficult childhood and this

resulted in psychological and emotional problems. The

court determined that the mitigating circumstances,

neither individually nor collectively, were “substantial or

sufficient to outweigh the aggravating circumstances.”

Kearse, 770 So. 2d at 1122-23.

5 By the time of Kearse’s resentencing, counsel was well seasoned. Counsel had

been practicing criminal law for approximately 16 years, and capital litigation for

about 11 years. He had done more than 80 homicide trials, which was most of the

capital cases prosecuted in the Nineteenth Judicial Circuit, and attended the “Life

Over Death” and Death is Different” seminars as well as watching other capital

cases tried in the circuit to stay abreast of issues. (1IPCR 495-99, 603-09).

and prepare for the testimony of state expert, Dr. Martell. In rejecting the

Strickland claim, the trial court noted that penalty phase counsel prepared and

presented "extensive mental health mitigation" and "adoptled] and incorporateld]s

relevant portions of the State's summary of testimony presented at the penalty

phase and Udell's comments concerning the second penalty phase developed at the

evidentiary hearing." (1PCR 5726-36)10

The trial court found:

. . Udell knew or anticipated the substance of Dr.

Martell's testimony despite not having deposed Dr.

Martell. Udell cannot be held responsible for the ruling

just weeks before commencement of the second penalty

phase compelling the State's mental health examination

of Kearse. The ruling resulted in the late disclosure of the

State's mental health expert, Dr. Martell. The record

reflects that Udell requested but was denied a

continuance to depose Dr. Martell.

(1PCR 5733). The trial court also credited Udell's testimony that he knew what Dr.

Martell was going to say either from discussions with Dr. Martell or the prosecutor

"and through Udell's familiarity with the work of Dr. Martell's partner, Dr. Dietz."

(1PCR 5733). Continuing, the trial court found it evident from the record that

"Udell anticipated Kearse's personality profile would be an issue" with respect to

malingering and that he was aware Kearse's "childhood diagnosis of conduct

disorder would be problematic," necessitating presentation of teachers and

counselors to offer alternate explanations. (1PCR 5733). The trial court also

rejected the challenge to Udell's use of Dr. Lipman to present other experts'

10 Trial court's order attached as Appendix A.

opinions finding: "the record is replete with expert opinion contradicting Dr.

Martell's testimony. Consequently, the Court construes this claim as more of an

expression of Kearse's dissatisfaction with the trial performance of Dr. Lipman

under pressure of effective cross-examination. " (1PCR 5734-35)

With respect to the complaint that Udell was inadequately prepared to

present mental mitigation and undercut Dr. Martell's evaluation procedures and

opinion, the trial court determined:

... there is no prejudice where it is clear from the evidentiary hearing

testimony that mental health experts do not agree on a standard

method of interviewing, where mental health experts disagree on

interpreting testing profiles indicating the possibility of malingering,

and where Kearse did not show how a qualitative analysis of Kearse's

test results would have been dispositive to the resolution of the

disagreements among mental health experts. Therefore, the Court

finds no evidence that a different approach to cross-examination would

mitigate to a life sentence.

(1PCR 5735).

On appeal, the Florida Supreme Court set forth the standard of review under

Strickland and the mitigation testimony presented from defense experts and lay

witnesses to place the claim in context. Kearse, 969 So. 2d at 984-85. It then found

that Udell obtained Dr. Martell's raw data and report which were forwarded to the

defense experts and Udell consulted with his experts. Kearse, 969 So. 2d at 985-86.

Udell also consulted with the state attorney regarding Dr. Martell's upcoming

testimony. Based on Udell's postconviction testimony, the Florida Supreme Court

concluded that Udell knew what Dr. Martell would opine about mitigation in the

case, Kearse's test results, and where Dr. Martell differed from the defense experts.

10

Kearse, 969 So. 2d at 986. The court concluded Udell had "correctly anticipated

Martell's testimony" and that Kearse had not "demonstrated anything material that

defense counsel did not anticipate or could have done differently had he deposed Dr.

Martell." Kearse, 969 So. 2d at 986.

The Eleventh Circuit Court of Appeals considered this claim under the

doubly differential tandem standards of Strickland and AEDPA. The review of the

record established that: (1) Udell was given a limited time to prepare for Dr.

Martell; (2) but even so, Udell knew what the state's expert would say; (3) Udell

sent Dr. Martell's test results to the defense experts for consideration; (4) on crossexamination Udell obtained Dr. Martell's admissions consistent with the defense

case; and (5) Udell prepared the defense experts to rebut Dr. Martell's testimony

including the personality profile, malingering, and mitigation testimony. Kearse,

2022 WL 3661526 at 19-22. The circuit court also noted that that there was no

categorical rule that counsel must depose every witness and whether to depose an

expert was a strategic decision. /d. at 21. The court credited Udell's testimony that

"he was a ‘firm believer of doing very little discovery on the record in the presence of

the [sltate laltorney' because 'every time you take a deposition, they learn one thing

about your case that but for your deposition they wouldn't have known.'" /d. at 22.

The court agreed that this was not an unreasonable position. /d. at 22.

The circuit court also pointed to Kearse's postconviction Strickland expert's

testimony that the decision to attend an evaluation of the defendant by the state's

expert was a tactical/strategic one. /d. at 22. It also noted that Udell did attend Dr.

11

Martell's evaluation of Kearse until he honored the doctor's request that the

evaluation be done in private. However, Udell stayed during the initial questioning

of his client about the circumstances of the murder so that he might preserve his

objections to the evaluation. Jd. at 22. Based on the circuit court's doubly

differential review, and reaching only the performance prong of Strickland, it

rejected habeas relief finding the Florida Supreme Court did not unreasonably

apply Strickland. Id. at 22. It is this decision that this Court has been asked to

review.

12

REASONS FOR DENYING THE WRIT

ISSUE I

CERTIORARI REVIEW OF THE DENIAL OF HABEAS

CORPUS RELIEF ON A CLAIM OF INEFFECTIVE

ASSISTANCE OF PENALTY COUNSEL SHOULD BE

DENIED AS THE ANALYSIS CONDUCTED BY THE

CIRCUIT COURT UNDER THE DOUBLY

DEFFERENTIAL STANDARD OF STRICKLAND AND

THE AEDPA IS NOT CONTRARY TO OR AN

UNREASONABLE APPLICATION OF THIS COURT'S

PRECEDENT AND DOES NOT PRESENT AN

IMPORTANT OR UNSETTLED MATTER’ OF

CONSTITUTIONAL LAW

Certiorari review should be denied where the Eleventh Circuit Court of

Appeals’ decision reviewing a state court’s denial of an ineffective assistance of

counsel claim does not conflict with a decision of any other state court of last resort

or any decision of any federal court of appeals. Federal habeas relief may not be

granted unless this Court finds that the Florida Supreme Court’s assessment of the

Strickland deficiency prong is contrary to and an unreasonable application of this

Court’s precedent. Williams v. Taylor, 529 U.S. 362 (2000). Kearse has not

demonstrated that the Florida Supreme Court’s merits determination based on

credibility and factual findings supported by the record requires review by this

Court. Under the doubly deferential ADEPA standard for both defense counsel's

performance and the state court's rejection of the Strickland claim, certiorari should

be denied.

“A state court's determination that the claim lacks merit precludes federal

habeas relief so long as fairminded jurists could. disagree on the correctness of the

13

state court's decision.” Harrington v. Richter, 562 U.S. 86 (2011) (internal quotation

marks omitted). If there is any basis for any reasonable jurist to agree with the

state court, habeas relief must be denied. "In order to be granted relief, the inmate

must show that the state court's merits ruling was so lacking in justification that

there was an error well understood and comprehended in existing law beyond any

possibility for fair minded disagreement. /d. Here, Kearse cannot show that the

state court’s opinion addressed to Strickland deficiency which rested on factual and

credibility determinations supported by the record decided an important question of

federal law in a manner that conflicts with a decision of this Court. See Supreme

Court Rule 10. Further, determination of whether the rejection of Kearse's

ineffective assistance of penalty phase counsel’s claim under Strickland, is

dependent wholly on the facts of the case and of significance to no one other than

the parties to this ltigation. This Court has noted that cases which have not

divided the federal or state courts or presented important, unsettled questions of

federal law do not usually merit certiorari review. Rockford Life Ins. Co. v. Hlinois

Dep't of Revenue, 482 U.S. 182, 184 n.3 (1987). As no compelling reason for review

has been offered, certiorari should be denied.

Review of the denial of habeas corpus relief is circumscribed by 28 U.S.C.

Section 2254(d)(1)11 which focuses solely on the propriety of the state court’s

11 As this Court explained in Brown v. Payton, 544 U.S. 183, 141 (20085):

AEDPA provides that, when a habeas petitioner's claim has been

adjudicated on the merits in state-court proceedings, a federal court

may not grant relief unless the state court's adjudication of the claim

14

decision on the merits of the claim of ineffective assistance of penalty phase counsel.

Federal habeas relief is not available unless the state decision is "contrary to, or an

unreasonable application of, clearly established federal law as determined by the

United States Supreme Court, or the state court's determination of facts was

unreasonable in light of the evidence." Williams, 529 U.S. at 412-13. See, Woodford

v. Visciotti, 537 U.S. 19 (2002) (explaining when habeas applicant alleges Sixth

Amendment violation, he must show that state court applied Strickland in an

objectively unreasonable manner); Yarborough v. Gentry, 124 S. Ct. 1 (2003) (noting

that the focus is on the state court's application of governing federal law). AEDPA,

“imposes a highly deferential standard for evaluating state-court rulings and

demands that state-court decisions be given the benefit of the doubt.” Felkner v.

Jackson, 131 S. Ct. 1805, 1307 (2011) (per curiam).

Kearse suggests that the circuit court truncated its review of his Strickland

claim by finding counsel's performance constitutional based on a "mere incantation

“resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States.” 28 U.S.C. §

2254(d)(1). A state-court decision is contrary to this Court's clearly

established precedents if it applies a rule that contradicts the

governing law set forth in our cases, or if it confronts a set of facts that

is materially indistinguishable from a decision of this Court but

reaches a different result. Wiliams v. Taylor, supra, at 405, 120 S. Ct.

1495; Karly v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 154 L.Ed.2d 263

(2002) (per curiam). A state-court decision involves an unreasonable

application of this Court's clearly established precedents if the state

court applies this Court's precedents to the facts in an objectively

unreasonable manner. Williams v. Taylor, supra, at 405, 120 S. Ct.

1495; Woodford v. Viscrotti, 537 U.S. 19, 24-25, 123 S. Ct. 357, 154

L.Ed.2d 279 (2002) (per curiam).

15

of strategy" and that this conflicts with Strickland and its progeny. He further

suggests that counsel's failure to conduct discovery in this case was deficient and

that prejudice resulted. A review of the state and federal courts' analysis of the

claim establish that counsel conducted the most effective discovery he could under

the time constraints imposed, anticipated correctly what the state's expert would

say, and prepared the defense experts to counter that evidence. As the reviewing

courts have concluded, Kearse has not set forth any evidence that should have been

discovered and presented that establishes Strickland prejudice sufficient to

undermine confidence in the sentencing. The situation in this case is unique and of

interest to these parties alone. The courts resolved credibility issues against Kearse

and the facts show that counsel's alleged omissions did not prejudice his client.

This Court should deny certiorari.

The Circuit Court Conducted a Full and Proper AEDPA Analysis of

Counsel's Performance Based on Testimony Regarding Strategy and

Supporting Record Evidence to Find that the Florida Supreme Court's

Opinion Was Not Contrary to or an Unreasonable Application of

Federal Law

The pith of Kearse's challenge is that the state and federal courts should not

have found Udell had a strategy for not deposing Dr. Martell. That is not a claim

meriting certiorari review. Clearly, the courts believed Udell when he testified that

he knew what Dr. Martell would say. While "[rleasonable minds reviewing the

record might disagree about the [witness]'s credibility, but on habeas review that

does not suffice to supersede the trial court's credibility determination.” See fice v.

Collins, 546 U.S. 333, 341-42 (2006)). Even so, the courts did not just take Udell's

16

word for his reason for not deposing Dr. Martell. The courts considered the

preparation Udell did for his mental health experts, the fact that Udell correctly

anticipated Dr. Martell's testimony, and how he used the defense experts not only to

show where Dr. Martell's opinion was subject to attack, but obtained concessions

from Dr. Martell that supported the defense. See Kearse, 2022 WL 3661526 at *19-

22; Kearse, 969 So. 2d at 984-86. The review provided by the state court followed

the dictates of Strickland and the review by the federal court, under the doubly

deferential AEDPA standard, is not contrary to or an unreasonable application of

clearly established Supreme Court precedence. See generally, Turner v. Williams,

35 F.3d 872, 898 (4th Cir. 1994) (concluding counsels’ failure to depose the state's

witnesses was not ineffective assistance because counsel was aware of witness's

testimony based on conversations defense counsel had with prosecutor), overruled

on other grounds by O'Dell v. Netherland, 95 F.3d 1214 (4th Cir. 1996); Eggleston v.

United States, 798 F.2d 374, 376 (9th Cir. 1986) (recognizing "[al claim of failure to

interview a witness may sound impressive in the abstract, but it cannot establish

ineffective assistance when the person's account is otherwise fairly known to

defense counsel.” (quoting United States v. Decoster, 624 F.2d 196, 209 (D.C. Cir.

1976) (en banc))); Messer v. Florida, 834 F.2d 890, 896-97 (11th Cir. 1987)

(concluding that defense counsel's decision not to depose the pathologist who

performed an autopsy on the victim wasn't “outside the wide range of professionally

competent assistance” where “defense counsel testified in state court that he had

full access to the prosecutor's files, which presumably included the pathologist's

17

report” (quotation omitted)); Robinson v. Maschner, 2 Fed. Appx. 683, 684 (8th Cir.

2001) (rejecting Strickland claim that counsel failed to depose expert where state

postconviction court credited defense counsel's testimony and record showed counsel

effectively cross-examined expert). Kearse has not offered a case which has held

that the failure to depose an expert under these circumstances is ineffective

assistance of counsel.

Moreover, Kearse has admitted that there is no case from this Court or a

lower tribunal that has found a defense counsel must depose every state witness or

expert especially where a continuance was denied to Udell. See Rogers v. Zant, 13

F.3d 384, 387 (11th Cir. 1994) (oting “Strickland indicates clearly that the

ineffectiveness question turns on whether the decision not to make a particular

investigation was reasonable. This correct approach toward investigation reflects

the reality that lawyers do not enjoy the benefit of endless time, energy or financial

resources.”); McClesky v. Kemp, 753 F.2d 877, 900-901 (11th Cir. 1985) (because

petitioner did not demonstrate how counsel's failure to interview certain individuals

would have revealed information not already known to him or affected his crossexamination, he could not show a “reasonable probability” that such failure affected

the verdict).

Kearse's attack on the rejection of his Strickland claim is very fact specific

given the circumstances of the time constraints imposed and newly applied rule,

18

Rule 3.202, Fla. R. Crim. P. (1996)!2 permitting the State to have the defendant

examined by its expert. Again, the state courts credited Udell's recollections on his

preparation for Dr. Martell and reviewed such in MIlight of the

preparation/presentation of defense experts, obtaining concessions from Dr. Martell,

and the fact Kearse failed to show what more Udell should have done that would

have resulted in a reasonable probability of a different outcome. The resolution

here is not in conflict with another case from this Court or another circuit court or

state supreme court.

Kearse argues that the circuit court's conclusion that Udell knew what Dr.

Martell would opine is refuted by the record. (P. at 20). However, Kearse fails to

offer specific support for that proposition. As the circuit court determined, the

cross-examination of Dr. Martell challenged the doctor's opinion that Kearse did not

suffer from fetal alcohol effect by having Dr. Martell agree that drinking alcohol

"while pregnant could cause significant detrimental effects" and lead to brain

dysfunction, a factor the defense and its experts were positing. Kearse, 2022 WL

3661526 at *20. Additionally, Udell was able to show the jury that Dr. Martell

12 See Kearse v. State, 770 So. 2d 1119, 1126-27 (Fla. 2000) (rejecting the

contention that rule 3.202 violates a defendant's due process rights by creating a

one-way discovery obligation); see also Buchanan v. Kentucky, 483 U.S. 402, 423-24

(1987) (holding that subjecting the defendant to the State's mental health

examination for the purpose of rebutting the defendant's alleged emotional

disturbance did not violate the Fifth Amendment); Davis v. State, 698 So. 2d 1182,

1191 (Fla. 1997) (rejecting the contention that requiring a defendant to submit to an

examination by the State's mental health expert before the penalty phase of a

capital case violates the defendant's Fifth Amendment right against compelled selfincrimination).

19

would not want his wife to drink while she was pregnant and that the doctor was

not a neuropharmacologist, as was Dr. Lipman, and had not studied the effects of

alcohol on animals. Jd. at 20.13 The cross-examination also showed that Udell

started to challenge Dr. Martell's opinion on both statutory mental health

mitigators. Udell was able to get Dr. Martell to admit that he had not thought

about when Kearse may have formed the intent to kill and to highlight facts

undercutting Dr. Martell's opinion on the avoid arrest aggravator. Jd. at 21. As the

circuit court noted, even though there were just three days between Dr. Martell's

examination and the start of trial, Udell provided Dr. Martell's test results to the

defense experts which assisted those experts in their testimony rebutting Dr.

Martell's conclusions regarding intellectual functioning and malingering. Jd. (2ROA

2427-2518, 2521-23).

From the foregoing, the state and federal courts did not merely rely on

Udell's announcement that he does not always depose state experts so he may

shield from disclosure defense information. Instead, the courts engaged in an

analysis of what Udell did and how those decisions met the dictates of Strickland

given the other evidence in the case. As such, Udell's billing errors and other

alleged omissions in his representation of Kearse did not result in Strickland

prejudice. Kearse failed to show what more Udell could have done that would have

resulted in a different sentence. As such, neither Battenfield v. Gibson, 236 F.3d

1215, 1229 (10th Cir. 2001) nor Hooper v. Mullm, 314 F.3d 1162, 1170-71 (10th Cir.

13 See State's Appendix A, trial court's order denying postconviction relief" (1PCR

5734-35) and (2ROA 2427-2518, 2521-23)

20

2002) establish a conflict necessitating certiorari review. As the record shows and

the Florida Supreme Court found, this is not a situation where counsel failed to

investigate and present mitigation. What it shows is that under the time

constraints imposed by the trial court, Udell supplied his experts with the results of

Dr. Martell's testing and was informed sufficiently of Dr. Martell's opinion that an

effective defense mitigation case was presented and Dr. Martell was challenged

effectively on cross-examination. Strickland and its progeny were applied

reasonably to the facts and circumstances of this case and certiorari should be

denied.

Trial Counsel's Reliance on Dr. Lipman to Challenge the State's

Expert Was Reasonable Under Strickland

Kearse asserts that the circuit court failed to address his claim that it was

ineffective assistance for Udell to present Dr. Lipman, a neuropharmacologist, to

rebut Dr. Martell's testimony. A review of the circuit court's opinion refutes this

claim. Kearse, 2022 WL 3661526 at *22.

The trial court made findings rejecting Kearse's insinuation that Dr. Lipman

was ill prepared and was threatened by the trial judge. The record shows that Dr.

Lipman was not privy to any discussion of his licensing restrictions as he does not

appear to have entered the courtroom at the time the objection was raised (2ROA

2277). Further, the trial court characterized the State's objection to Dr. Lipman as

a bench objection, where presumably Dr. Lipman, even if he were in the courtroom,

should not have been able to hear the conversation at the bench. (1PCR 5734). What

is clear is the jury was not in the courtroom when the trial court made its ruling

21

and verbally mused about possible charges. (2ROA 2286-87). Moreover, Udell

"overwhelmed Dr. Lipman with "paperwork;" background materials on Kearse, and

Dr. Martell's test results. (QROA 2317-20, 2322, 2336-38; PCR 161-62). As the trial

court concluded during the state postconviction litigation, Udell's use of Dr. Lipman

to present other experts' opinions was not ineffective as "the record is replete with

expert opinions contradicting Dr. Martell's testimony. Consequently, the Court

construes this claim as more of an expression of Kearse's dissatisfaction with the

trial performance of Dr. Lipman under pressure of effective cross-examination."

(1PCR 5734-35). Nonetheless, the trial court found "no prejudice where Kearse does

not demonstrate how Dr. Lipman’s opinion would have changed and how that

change in opinion would have mitigated to a life sentence." (1IPCR 5735) The trial

court determined:

Further, the Court finds no ineffective assistance of

mental health experts. Kearse’s postconviction mental

health experts, Drs. Crown, Dudley, Friedman, and Hyde,

offered opinions consistent with Kearse’s penalty phase

mental health experts, Drs. Petrilla and Lipman, despite

Dr. Dudley’s disagreement with the diagnosis of conduct

disorder made by Kearse’s childhood psychiatrist Dr.

Dedai. These expert opinions were based on facts

cumulative to evidence presented in the second penalty

phase with the exceptions of a reference to an affidavit by

a relative that Kearse had an odd shaped head at birth,

and self reports by Kearse that he experienced

nightmares and had some different sexual experiences as

a child. No birth records or additional medical records

were produced during the postconviction proceeding to

establish Fetal Alcohol Syndrome, organic brain damage,

or mental retardation. And even though Kearse

challenges the propriety pf Dr. Petrilla’s administration of

the MMPI personality test, postconviction mental health

expert, Dr. Crown developed a personality profile of

22

Kearse consistent with Dr. Petrilla’s personality profile

using a different test instrument. Therefore, the Court

finds no basis for a claim of ineffective assistance of

mental health experts.

(1PCR 5725-36).

The circuit court reviewed the record and agreed that Dr. Lipman and Dr.

Petrilla were prepared in a constitutional manner. Kearse, 2022 WL 3661526 at

*22. Kearse does not explain how this determination is contrary to or an

unreasonable application of Strickland or where that ruling conflicts with a case

from this Court or anther federal circuit court or state supreme court. Certiorari

should be denied.

The Florida Supreme Court's Strickland Prejudice Prong Analysis

Does Not Conflict with a Case from This Court

In rejecting the ineffective assistance of penalty phase counsel claim, the

Florida Supreme Court considered the cross-examination of Dr. Martell by Udell

establishing Udell had correctly anticipated the doctor's testimony and found

Kearse "has not demonstrated anything material that Udell "did not anticipate or

could have done differently had he deposed Dr. Martell." Kearse, 770 So. 2d at 986

(emphasis supplied). That court rejected Strickland prejudice, finding "... Kearse's

experts at the postconviction hearing largely testified in conformity with the

testimony [Udell] presented at the re-sentencing." /d. When the federal circuit

court reviewed this claim under AEDPA, it agreed that Udell's performance was

reasonable under the circumstances and that "[blecause the Florida Supreme Court

"did not unreasonably apply Strickland's performance prong, we need not address

23

the prejudice prong." Kearse, 2022 WL 3661526 *22.

Kearse boldly asserts that Udell's "failure to investigate and challenge Dr.

Martell's testimony allowed the State to decimate Kearse's mitigation claims" and

but for those failing, the resentencing "would have been different." (P. at 26-27). In

support Kearse points to Justice Anstead's dissent wherein it was argued that

Kearse's death sentence should be vacated on proportionality grounds. This

argument is limited to the instant parties and does not provide Kearse with a basis

for certiorari review. First, this Court has determined that comparative

proportionality review is not required under the United States Constitution. See

Pulley v. Harris, 465 U.S. 37, 50-51 (1984) (announcing "There is thus no basis in

our cases for holding that comparative proportionality review by an appellate court

is required in every case in which the death penalty is imposed and the defendant

requests it."). Second, the Florida Supreme Court has recognized that under

Florida's Constitutional requirement to conform its Eighth Amendment decision to

this Court's Eighth Amendment analysis, comparative proportionality is no longer

applicable in Florida capital sentencing review. See Lawrence v. State, 308 So. 3d

544, 552 (Fla. 2020) (eliminating "comparative proportionality review from the

scope of our appellate review set forth in rule 9.142(a)(5)" Florida Rule of Appellate

Procedure). Hence, the issue of comparative proportionality discussed by Justice

Anstead, does not establish a basis for challenging the ineffective assistance of

penalty phase counsel claim either under the Florida Supreme Court's application

of Strickland or the federal court's "doubly deferential" standard under the AEDPA.

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